Penn Law advising the nation's highest court

Penn Law students assist defendant in Abbott case

Several Penn Law students didn’t even have to wait to graduate to get involved with the nation’s highest court.

On Jan. 12, eight third-year Penn Law students traveled to Washington, D.C., to assist attorney Karl Hays in defending Jacquelyn Abbott, the defendant in an international custody case, before the U.S. Supreme Court.

The students were led by Professor Stephanos Bibas and were part of Penn Law’s Supreme Court Clinic, which allows students to conduct research and write briefs for Supreme Court cases.

The clinic, founded last year, is a partnership between Penn Law and law firm Paul Hastings in Washington, D.C. Bibas, who assisted the defense’s counsel, explained that the clinic builds upon general knowledge of the Supreme Court provided to students in a semester-long prerequisite seminar to Bibas’ clinic.

Timothy Abbott, divorced husband of Jacquelyn Abbott, contends that his wife, who has child custody, broke a Chilean law by taking their child to Texas from their native Chile without his permission. The law grants him a ne exeat right, which allows him to veto her removal of the child from the country. This in turn, he claims, grants him right of custody through the Hague Convention on the Civil Aspects of International Child Abduction.

“There are these orders that say you can’t leave the country without the permission of the husband — and she left the country without the permission of her husband,” Bibas explained. The question, as he sees it, is whether the Hague Convention recognizes ne exeat and awards custody rights to the husband. If so, the courts are forced to return the child. If not, no action needs to be taken.

Dane Reinstedt, a Law student in the clinic, explains that the law firm Paul Hastings gave them all research assignments relating to different aspects of the treaty and international law. “Memoranda based on that research were submitted to Paul Hastings and were used to craft the brief that ultimately went before the Supreme Court,” he explained.

Among the legal arguments the students used was the implementation of ne exeat rights in other nations.

“We had to do a search of 20 or 30 countries around the world — often in languages none of us could read — and try to figure out … whether it was natural to presume that [ne exeat] entitles you custody,” Law student Rick Bold said.

The clinic did not only come up with legal arguments for the case but also helped prepare Hays to speak before the Supreme Court Justices.

“We had a moot court to prepare [Hays] for his argument here at Penn during finals last semester,” Bibas said. “This lawyer had never been to the Supreme Court, so this was our first chance to give him a taste of what it’d be like to have these justices firing questions at him.”

Bibas also noted that rival Stanford Law School was assisting on the other side of the courtroom. “It was the first ever case in the Supreme Court where there was one law school clinic against another one,” he said. Bibas described the rivalry as good-spirited, saying, “We don’t believe they managed to conduct any law school espionage against us.”

The clinic expects to be at the Supreme Court again on Feb. 22 for Astrue v. Ratliff, a case dealing with attorney’s fees in social security cases.